Giebelhaus v Giebelhaus, 2024 ABCA 20

In the Court of Appeal of Alberta Citation: Giebelhaus v Giebelhaus, 2024 ABCA 20 Date: 20240118 Docket: 2301-0159AC Registry: Calgary Between: Briana Korren Giebelhaus Appellant - and - Kyle John William Giebelhaus Respondent _______________________________________________________ The Court: The Honourable Justice Jo'Anne Strekaf The Honourable Justice Jolaine Antonio The Honourable Justice Jane A. Fagnan _______________________________________________________ Memorandum of Judgment Delivered from the Bench Appeal from the Order by The Honourable Justice R.J. Hall Dated the 15th day of June, 2023

Filed on the 17th day of July, 2023 ( Docket: 4806 021878) _______________________________________________________ Memorandum of Judgment Delivered from the Bench _______________________________________________________ Fagnan J.A. (for the Court): [ 1 ] The appellant mother appeals orders dated June 15, 2023 issued by a special chambers judge for week on/week off shared parenting of a 7-year-old child and for child support based on the income reported by the parties for 2020 to 2023. [ 2 ] The appellant raises four issues on appeal. [ 3 ] First, she argues it was procedurally unfair for the chambers judge to award equal parenting time when only “regular specified and meaningful parenting time” had been sought in the respondent’s application.

She contends she did not receive notice of the request for equal parenting time and, as a result, was denied a meaningful opportunity to respond. [ 4 ] This argument has no merit. In the materials filed prior to the special chambers hearing, the respondent was clear he wanted equal parenting time.

In his September 3, 2021 affidavit, he recounted what he said “had been already conveyed to the [appellant’s] counsel months previously” as follows: … I indicated I would agree to a period of transition to a more equitable parenting arrangement over the course of a couple of months but that I viewed equal shared parenting as in the best interests of the child and that was the goal. In his May 20, 2022 affidavit, he stated, “[i]t is my position that I should be entitled to the ruling I have been seeking for years on the issue of equal parenting time”.

In his November 18, 2022 Concise Letter, his counsel wrote, “Kyle seeks equal parenting time with the child”. Moreover, by the fall of 2021, the respondent had been granted close to equal parenting time. It was apparent from the fact the respondent was proceeding with his application that he wanted to further increase his parenting time. [ 5 ] Second, the appellant argues because the respondent was seeking significant changes to a de facto parenting arrangement the matter should have been set down for trial.

Further, she says the matter was not suitable for chambers because there was conflicting affidavit evidence and substantial conflict between the parents. [ 6 ] The appellant did not raise these objections before the chambers judge. On the contrary, the parties had agreed to the matter proceeding by way of special chambers application, without viva voce evidence. In any event, she has not identified any material conflict in the evidence or conflict between the parties that would be relevant to determining whether to grant what is, in this case, a relatively minor increase in parenting time.

This ground of appeal has no merit. [ 7 ] Third, the appellant argues the chambers judge erred in improperly assessing the best interests of the child. She submits the chambers judge gave no consideration to how making “such a drastic change” would affect the child, and that he erred by framing the issue of parenting time as a matter of parental rights. [ 8 ] We disagree. The increase in parenting time was not “drastic”. It is clear from the transcript that the chambers judge was properly focused on the child’s best interests. Among other things, he accepted that the respondent would be able to rearrange his work

schedule to be present for his parenting time. He did not “see anything inappropriate in [the respondent’s] efforts, and in his attempts, and in his love for his child”, and concluded, “[i]t is in the child’s best interest in my view that the parties have equal parenting time.” There is no reviewable error. [ 9 ] Finally, the appellant argues the chambers judge erred in determining the respondent’s guideline income for 2022.

She alleges a failure of disclosure on the respondent’s part and an error in fact-finding by the chambers judge. [ 10 ] In fact, the respondent disclosed his reduced 2022 income well before the June 2023 hearing, in affidavits filed January 16, 2023 and June 5, 2023, on which the appellant did not cross-examine. [ 11 ] The chambers judge accepted the respondent’s explanation that his income dropped in the year he moved to Calgary to be closer to his child. He concluded that the $28,674 reported on the respondent’s notice of assessment represented what he had in fact been able to earn in 2022.

His factual conclusion attracts deference on appeal. [ 12 ] For all the foregoing reasons, the appeal is dismissed.

Fagnan J.A. [Discussion regarding costs] Strekaf J.A. (for the Court): [ 13 ] The respondent is granted costs under Column 1 for both the appeal and the stay application, payable forthwith, by way of an offset against outstanding child support. Appeal heard on January 15, 2024 Memorandum filed at Calgary, Alberta this 18th day of January, 2024 Authorized to sign for Strekaf J.A. Appearances: C.M. Thompson for the Appellant D.G. Gryba I.A. Hess (no appearance) for the Respondent